E-Verify Enrollment: A Potential Marketing Tool for Florida Employers?

(Forthcoming in “The Checkoff”, a publication of the Labor and Employment Law Section of the Florida Bar) By Elizabeth Ricci, Esq. Governor Scott’s Platform Immigration was one of Governor Rick Scott’s key campaign issues. On his first day in office he issued an Executive Order1 which requires state agencies to use the EVerify system to verify employment eligibility of state employees and contractors. What is E-Verify? E-Verify is the internet-based companion to Form I-9 Employment Eligibility Verification that allows an employer, in three to five seconds, to determine a worker’s employment authorization status by comparing information listed on Form I-9 with some 455 million Social Security records and 80 million Homeland Security visa, citizenship and U.S. passport records.ii Voluntary vs. Mandatory Enrollment The Department of Homeland Security strongly encourages, but does not currently require, states to mandate employers’

enrollment in E-Verify. At this time, however, four states require that all employers be enrolled in the system while nine have some form of E-Verify requirement. There are seven states, including Floridaiii with pending legislation that would require enrollment. To date only the state of Illinois bars employers from E-Verify enrollment.iv Also, as of September 8, 2009, certain federal contractors must enroll new and existing employees in the system.v Positions E-Verify was hailed by President George W. Bush as “the best means available to confirm the work authorization of the workforce.”vi Likewise, other advocates of enrollment claim “[t]he statistics show E-Verify works . . . . Even for employees who receive initial mismatches and are later confirmed as work authorized, E-Verify informs them of possible errors with their government records. By clearing up mismatches sooner rather than later, E-Verify can save these employees significant time and frustration.”vii In contrast, opponents such as the American Immigration Lawyers Association (AILA) claim that “E-Verify does not effectively root out all undocumented workers. Some undocumented workers will be erroneously confirmed as

authorized to work. E-Verify cannot identify counterfeit, stolen, or borrowed identity documents. A worker may present ‘good’ documents that check out through E-Verify, but E-Verify cannot confirm that the document belongs to the person presenting them.”viii Similarly, AILA notes that “Due to errors in the Social Security Administration and DHS databases, some citizens and legal workers will receive tentative nonconfirmations, or even final nonconfirmations, and will not be able to resolve the discrepancy or may not even know about the problem. They will be denied employment and paychecks.”ix Unintended Consequence of Voluntary Enrollment Regardless of the legal requirement, I-9 compliance and E-Verify enrollment might be used as a way to market to consumers desirous of assurances that businesses with whom they deal hire only authorized workers. According to Tallahassee-based employment law attorney Robert J. Sniffen, “The I-9 is a deceptively simple form for which the consequences of noncompliance can mean civil and criminal penalties. If the system continues to be free, if legal workers are not harmed by its use and if Florida businesses can benefit by increasing competitiveness, Florida

employers should consider voluntary enrollment.”x Likewise, governmental consultant and lobbyist Paige Cater-Smith, with Governance, Inc., noted “the importance of EVerify enrollment cannot be overstated. The potential windfall to Florida businesses contracting with the federal government is well worth enrollment.”xi Conclusion As an online counterpart to the I-9, E-Verify may provide a means of quickly verifying workers’ employment eligibility. All state agencies under the direction of the Governor must now use E-Verify and, although some are concerned about federal database errors, all state agencies must now use E-Verify and all Sunshine State employers may soon be required to do so either due to market conditions or state law. i EO 11-02 Verification of Employment Status. ii Uscis.gov/everify (accessed Dec. 1, 2010). iii H.B. 219, 112th Leg. Sess. (Fla. 2010) would have required state contractors to use E-Verify but was not sponsored in the Senate. iv http://www.numbersusa.com/co ntent/learn/enforcement/state/lo cal-policies/map-statesmandatory-e-verify-laws.html (accessed Dec. 1, 2010).

v 73 FR 221, Nov. 14, 2008. vi Exec. Order No. 13,465, 73 Fed. Reg. 113 (2008). vii Uscis.gov/everify (accessed Dec. 1, 2010). viii AILA InfoNet Doc. No. 09070868 (posted Jul. 8, 2009). ix Id. x Interview with Robert Sniffen, Managing Partner of Sniffen & Spellman, P.A., in Tallahassee, Fla. (Dec. 3, 2010). xi Interview with Paige CarterSmith, President of Governance, Inc., in Tallahassee, Fla. (Dec. 1, 2010).

with the Department of Homeland Security.

Elizabeth Ricci is the managing partner of Rambana & Ricci, PLLC in Tallahassee where she concentrates on employmentbased immigration and counsels employers on I-9 compliance, strategy and audit defense. She received her B.S. in International Business from Barry University and her J.D. from Nova Southeastern University where she argued on the First Amendment Moot Court team. Ms. Ricci is an EVerify Enrolled Employer Agent

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